ECCLESIASTICAL COURTS BILL. (Hansard, 4 July 1854)

LORD BROUGHAM
moved the second reading of the Bill, which had been brought up from the House of Commons, and which would effect, in his opinion, a very great improvement in the course of proceeding in the Ecclesiastical Courts. At present, as their Lordships were perhaps aware, the witnesses in these courts, instead of giving their evidence vivâ voce in the presence of the Judge by whom the cause was to be decided, were examined upon 1081 interrogatories, and their testimony taken down in writing. The result was, that one person heard the evidence, while another had to dispose of the case. The Court of Admiralty had for some time had the power of summoning witnesses before it, of taking their evidence vivâ voce, and of directing it to be reduced to writing, in such manner as the Judge of the Court might think fit. The object of the present measure was to extend this salutary provision to the Ecclesiastical Courts, there being no reason! whatever why it should not be applied to these as well as to the Court of Admiralty. The witnesses in the Admiralty Court being generally seamen, whose detention in this country would be frequently attended with considerable inconvenience, their affidavits were still generally used, but the power given by the Statute had not been applied so generally as it might have been under other circumstances; but so far as it had been applied, it had been found to work satisfactorily. He could not better illustrate the defects of the present system than by referring to the course which was taken in proceedings against clergymen under the Act for enforcing Church Discipline. The Commissioners whose business it was to institute a preliminary inquiry examined the witnesses vivâ voce; but these Commissioners had no jurisdiction, their duty being limited to making a report to the bishop as to whether, in their judgment, a primâ facie case had been established; and it was only when the clergyman consented, that the bishop had the power, on receiving a report in the affirmative, to pronounce sentence at once. If the clergyman did not consent—as generally happened in contested cases—the case had to be carried, by letters of request, to the Ecclesiastical Court, where the evidence was taken in writing in the presence of a person who was not the Judge by whom the decision was to be pronounced, and where the inconvenience which resulted from the Judge not having seen the witnesses was aggravated by this additional evil—that there was frequently a conflict of testimony between the vivâ voce examinations which had been taken before the Commissioners, and the written depositions which the witnesses had subsequently made. In one such case which had come within his own knowledge, and which had been carried to the Judicial Committee of Privy Council as the court of final appeal, and in which a right rev. Friend of his had been put to an 1082 expense of between 2,000l. and 3,000l., the difficulty and the costs had been very much increased by this conflict of testimony. He believed that another right rev. Prelate had been compelled to pay between 3,000l. and 4,000l., not one farthing of which he could recover; and it must be admitted that the case was a hard one, if men being placed in situations in which they were bound conscientiously to take a certain course, found themselves burdened, as the result of taking that course—in consequence of the defects of the law, and still more in consequence of the defects in the mode of administering the law—with an intolerable amount of expense. He would not say this Bill would entirely apply a remedy to this great evil, but it would very much diminish the amount of it. He believed, for instance, that in the case to which he last referred, the right rev. Prelate on the bench opposite, instead of having to pay 3,500l., would not have had to pay more than one-fifth that sum, had this Bill been sanctioned by Parliament. He admitted that it could only be called an instalment of Ecclesiastical Court reform, but it was a very important portion, because it went to amend the law of evidence, and he trusted this would only be the beginning of other measures directed to the same object. He begged to move that the Bill be read a second time.

THE LORD CHANCELLOR
said, he was convinced the Bill would meet with the entire concurrence of their Lordships, and, before putting the question, was only anxious to express his gratitude to his noble and learned Friend for the measure which he had introduced, and which came so gracefully and properly from him, who, in the last three or four years, had introduced so many analogous reforms with respect to evidence in the other courts. It certainly was a very great anomaly that the Ecclesiastical Courts should not have, under any circumstances, the power of taking vivâ voce evidence. As his noble and learned Friend said, this was but an instalment of Ecclesiastical Court reform. It would be his duty during the recess to look into the whole subject of the Ecclesiastical Courts with a view to meet the gross evils which existed. It had been often said that lawyers were not the persons to whom the public should look for law reforms. He never would agree in that, as he believed, if they were not the 1083 persons to whom they should look, they never would have any reforms at all; and in confirmation of that remark, much as they were indebted to his noble and learned Friend for the introduction of this Bill, it was to a practitioner in those courts, a Member of the other House (Mr. R. Phillimore), that they were indebted for its origination.

LORD CAMPBELL
admitted that the present state of the law was most deplorable, and particularly referred to the difficulty and expense of prosecuting offending clerks.

THE BISHOP OF OXFORD
said, that it was from no want of the appreciation of the need of legislation in this respect that some measure with relation to it had not already been laid upon the table; but the difficulties in the way of such legislation Were enormous. That the Bishops should undertake to introduce such a measure exposed them and their intended legislation to the greatest difficulties. Such a Bill, upon the very showing of it, was to punish the clergy, and not the Bishops, of the Church of England for errors in doctrine and practice, and their Lordships would admit the exceeding difficulty to Bishops of introducing legislation which they were to administer, and of which others were to be the subjects, without those others having the very fullest opportunity of discussing it, and publicly showing to the country their opinion upon it. It was not for him to say how that was to be done; but, possibly, ways might be found in which the clergy of the country consistently with their other duties might most legitimately discuss such measures in public, after which Parliament would advance to the consideration of questions of this nature with the great advantage of knowing what the clergy thought about them. He certainly did not expect to see any legislation upon this most difficult and delicate subject brought to a happy conclusion until those who were to be the special subjects of such legislation should be enabled to state their opinions with respect to it. He could not let this opportunity pass Without saying—and he believed that the thoughtful Members of their Lordships' House who attended to the subject, were increasingly coming to that conviction—that Church questions, and especially these most delicate ones, were at present discussed at a great disadvantage, not because the clergy had not the right to settle them first—which he, for one, should never 1084 desire—but because they had not the power of discussing them in public, and letting the Parliament know what they thought upon the matter, and why they thought so. He could only say that in the Commission of which he was a member (the Ecclesiastical Commission), in dealing with the chapters, this difficulty was continually experienced, and the members of that Commission felt that it would be of the greatest possible advantage to them, in giving their recommendations, if they had the means of knowing what the clergy at large thought upon these subjects. It was from no apathy, then, because they were deeply interested in the matter, and from no unwillingness to take their fair share in the legislation of the House, but it was from the inherent difficulties in the way, that the Bishops of England had not taken any steps on the subject.

THE BISHOP OF DOWN AND CONNOR,
expressed a hope that the measure would be extended to Ireland, since it was calculated to restore confidence in the consistorial courts, to shorten the duration of suits, and greatly to diminish the expenses.

§ THE EARL OF HARROWBY,
as a member of the Commission to which the right rev. Prelate (the Bishop of Oxford) had referred, expressed his hearty concurrence in what had fallen from him with respect to the clergy discussing in public questions of this nature. He thought that it was worth considering whether the ancient machinery of Convocation, which had formerly existed, could not be again revived for this purpose, which appeared to him to be more and more necessary, inasmuch as the Imperial Parliament less and less identified itself with the Church of England.